95 Cal. App. 2d 931 | Cal. App. Dep’t Super. Ct. | 1950
Plaintiff sought a judgment awarding him the sum of $237.93, the amount he had paid in connection with two written contracts which, he claimed, he was induced to enter into by fraud, and as a result of which he obtained nothing. More specifically, he alleged that he had “made a written agreement wherein and whereby the said plaintiff placed an order with the said defendants for the purchase and subsequent delivery of an automobile known as Tucker Motor car, ’ ’ and that he was induced to enter into another contract whereby he agreed to purchase, and the defendants agreed to sell, certain accessories to be used in connection with the Tucker motor car, by the fraudulent representation of the defendants that he (the plaintiff) would be able to procure and purchase said Tucker motor car and would be able to use the accessories on it. The defendants knew, he further alleged, that Tucker cars were not being produced, and that plaintiff could not obtain one. The trial court found these allegations to be true and awarded plaintiff a judgment for the amount he had paid the defendants. We have concluded that the evidence fails to support the findings essential to the judgment.
There is very little conflict in the evidence. Plaintiff, as did one hundred other persons, entered into two written contracts with the defendant. The essence of one is in these words: “The undersigned dealer allots to the undersigned customer the 98 Tucker motor cars which he may sell and deliver at retail if, as, and when they are produced and made available for delivery through said dealer. . . .
11 The customer is not hereby bound to order or accept delivery of a Tucker motor car, but may, if he desires, purchase said motor car according to said sequence number.
*933 “In consideration hereof and of such purchase, if made by the customer, the customer agrees to retain ownership of said Tucker motor car for a period of one (1) year ...”
These are the significant terms of the other writing: “Tucker Accessory Purchase Order 98. In consideration of $237.93, the receipt of which is hereby acknowledged, the undersigned dealer sells and agrees to deliver to the undersigned purchaser one group of automobile accessories as indicated below. . . . Group No. 7. Auto Radio $96.50 Seat Covers $69.50 Car Heater $65. $231.00 Sales Tax $6.43. Total 237.93. . . .
“It is specifically understood and agreed that this purchase order is in no way to be construed as an order for or purchase of a Tuck°r motor car and it is also understood that purchaser, by buying the Tucker Accessory Group Package, does not thereby agree, to purchase or accept delivery of a Tucker motor car, as, if and when they are produced.
“It is further understood and agreed that this instrument contains the entire agreement and understanding between the parties concerning the purchase of the Tucker Accessory Group Package and that no representations, agreements or understandings have been made except as specifically stated herein.
“This sale is not subject to cancellation.”
The plaintiff, no doubt, as the trial court became convinced early in the trial, desired to own a Tucker automobile, and that was why he signed the two agreements from which we have quoted. It appears that he was compelled to sign the accessory agreement in order to secure defendant's consent to that first set forth. No doubt, too, as the trial court stated, the two agreements constituted but one transaction.
It is also clear, however, beyond debate, that these two writings, taken together or singly, did not result in any agreement whereby plaintiff placed an order for the purchase or delivery of a Tucker car. That which plaintiff obtained, and all that he obtained with respect to the Tucker car, was an option to purchase one, “if, as and when” defendant ever had one to deliver. Words could hardly he found to make this clearer than the words appearing in the writing. The plaintiff was not placing his order for a car, but was being allotted a place in line by virtue of which, when his turn came, if it ever did, he could purchase a ear if he then wished to do so.
Postponing for a moment consideration of the contention that defendant’s fraud induced the plaintiff to enter these contracts, we find nothing that makes them invalid. It ap
Turning now to the matter of fraud, it is, of course, true that in spite of the provisions contained in the next to the last paragraph of the accessory purchase order, the plaintiff can, upon a rescission, present evidence of fraud in order to recover that which he was induced by fraud to pay. (Speck v. Wylie (1934), 1 Cal.2d 625 [36 P.2d 618); Herzog v. Capital Co. (1945), 27 Cal.2d 349, 353 [164 P.2d 8].) The fraud may not, however, consist of promises contrary to those contained in the written contracts. (Bank of America V. Pendergrass (1935), 4 Cal.2d 258, 263 [48 P.2d 659]; Cobbs v. Cobbs (1942), 53 Cal.App.2d 780, 785 [128 P.2d 373].) So it is that the “fraudulent representation,” (neither alleged nor found to have been made, but strongly stressed by the plaintiff as he testified, and presented in his argument on appeal) that the accessory purchase contract could be cancelled at any time, may not be relied upon by the plaintiff. With commendable candor he freely admitted, when a witness, that he had read the agreement before he signed it. It plainly states that ‘1 This sale is not subject to cancellation.” He may not rescind because of any statement by defendant’s agent that he could.
We find, as already indicated, that the evidence fails to support the allegations and findings touching fraud. Plaintiff, of course, having based his case upon fraud, had the burden of proving it. (Estate of Ross (1926), 199 Cal. 641, 651 [250 P. 676, 680]; Hedden v. Waldeck (1937), 9 Cal.2d 631, 636 [72 P.2d 114, 116].) In his complaint he alleged that it had been represented to him “that he would be able to procure and purchase said Tucker motor car” whereas in fact defendant “knew and had knowledge that said plaintiff would not be able to purchase or procure the said Tucker
Nor may the judgment be sustained on the theory of failure of consideration. Plaintiff obtained that which he bought and paid his money for under the express terms of the contracts, that is, a combination of two things: an option to purchase, expressly made contingent upon defendant’s receiving 98 cars to deliver; and the right to the delivery of the accessories upon demand. With respect to these two things, there is no evidence of a failure of consideration. The condition may not be added to these contracts by implication, that if the 98th car was not delivered within a reasonable time plaintiff might have his money back upon demand. As such
The judgment is reversed.
Shaw, P. J., and Stephens, J., concurred.